Tribunals (Scotland) Act 2014

PART 1 S The Scottish Tribunals

CHAPTER 1 S Establishment and leadership

Establishment and headship etc. S

1 Establishment of the Tribunals S

(1) There are established two tribunals to be known as—

(a) the First-tier Tribunal for Scotland,

(b) the Upper Tribunal for Scotland.

(2) The Tribunals mentioned in subsection (1) are referred to in this Act—

(a) respectively as—

(i) the First-tier Tribunal,

(ii) the Upper Tribunal,

(b) collectively as the Scottish Tribunals.

(3) The constitution, operation and administration of the Scottish Tribunals are as provided for by or under this Act or another Act.

(4) The jurisdiction, powers and other functions of the Scottish Tribunals are as conferred by or under this Act or another Act.

Commencement Information

I1 S. 1 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

2 Head of the Tribunals S

(1) The Lord President is the Head of the Scottish Tribunals.

(2) In that capacity, the Lord President has the functions exercisable by him or her by virtue of this Act.

Commencement Information

I2 S. 2 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

3 Upholding independence S

(1) The following persons must uphold the independence of the members of the Scottish Tribunals—

(a) the First Minister,

(b) the Lord Advocate,

(c) the Scottish Ministers,

(d) members of the Scottish Parliament,

(e) all other persons with responsibility for matters relating to—

(i) the members of the Scottish Tribunals, or

(ii) the administration of justice,

where that responsibility is to be discharged only in or as regards Scotland.

(2) In particular, the First Minister, the Lord Advocate and the Scottish Ministers—

(a) must not seek to influence particular decisions of the members of the Scottish Tribunals through any special access to the members, and

(b) must have regard to the need for the members to have the support necessary to enable them to carry out their functions.

Commencement Information

I3 S. 3 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

President of the Tribunals S

4 Assignment to office S

(1) There is established the office to be known as that of President of the Scottish Tribunals.

(2) It is for the Lord President to assign a person to that office.

(3) An assignment of a person to that office continues for as long as the Lord President considers appropriate.

(4) The Lord President may nominate a Vice-President of the Upper Tribunal to act temporarily in that office—

(a) if a person assigned to that office is for the time being unable to act in it, or

(b) pending an assignment of a person to that office.

(5) A person assigned to that office under subsection (2) or nominated to act in it under subsection (4) must be a judge of the Court of Session (but may not be a temporary judge).

Commencement Information

I4 S. 4(1)-(3) in force at 14.7.2014 by S.S.I. 2014/183, art. 2(a)

I5 S. 4(4) in force at 1.4.2015 by S.S.I. 2015/116, art. 2

I6 S. 4(5) in force at 14.7.2014 for specified purposes by S.S.I. 2014/183, art. 2(b)

I7 S. 4(5) in force at 1.4.2015 in so far as not already in force by S.S.I. 2015/116, art. 2

5 Functions of office S

(1) Under the headship of the Lord President, the President of Tribunals is the senior member of the Scottish Tribunals.

(2) The President of Tribunals has the functions exercisable by him or her by virtue of this Act.

(3) In this Act, a reference to the President of Tribunals is to the President of the Scottish Tribunals (and a reference to the office of President of Tribunals is to be read accordingly).

Commencement Information

I8 S. 5 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

CHAPTER 2 S Overarching responsibilities

Head of the Tribunals S

6 Representation of interests S

The Lord President is responsible for—

(a) representing the views of the membership of the Scottish Tribunals to—

(i) the Scottish Ministers, and

(ii) the Scottish Parliament,

(b) laying before the Scottish Parliament written representations on matters that appear to the Lord President to be of importance in relation to the Scottish Tribunals (including as to the administration of justice).

Commencement Information

I9 S. 6 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

7 Business arrangements S

(1) The Lord President is responsible for making and maintaining appropriate arrangements for securing the efficient disposal of business in the Scottish Tribunals.

(2) The Lord President is responsible for ensuring that appropriate arrangements are made and maintained as to the welfare of the members of the Scottish Tribunals.

Commencement Information

I10 S. 7 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

8 Delegation of functions S

(1) The Lord President may delegate to the President of Tribunals the exercise of any of the functions mentioned in subsection (2).

(2) That is, the functions exercisable by the Lord President by virtue of—

(a) section 7(1) or (2),

(b) section 33(1) or (2), or

(c) section 34(1) or (2).

Commencement Information

I11 S. 8 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

9 Directions on functions S

(1) The Lord President may give directions to the President of Tribunals as to the exercise of the functions exercisable by the President of Tribunals by virtue of this Act.

(2) Directions under subsection (1) may—

(a) vary or revoke earlier such directions,

(b) relate to particular functions or functions generally.

Commencement Information

I12 S. 9 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Regulations by Ministers S

10 Authority under regulations S

(1) Regulations under section 20(2) or 23(2) may—

(a) delegate to the Lord President authority to make arrangements of the kind to which that section relates,

(b) include provision relying on the effect of Tribunal Rules.

(2) Regulations under section 38(1), 40(1) or 41(1) may—

(a) delegate to the President of Tribunals authority to determine the things to which that section relates,

(b) include provision relying on the effect of Tribunal Rules.

(3) Delegation of authority under subsection (1) or (2) is subject to such provision about the exercise or sub-delegation of the authority as may be made in the regulations referred to in that subsection.

Commencement Information

I13 S. 10 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

11 Consultation on regulations S

(1) Before making regulations under section 20(2) or 23(2), the Scottish Ministers must—

(a) obtain the Lord President's approval,

(b) consult such other persons as they consider appropriate.

(2) Before making regulations under section 38(1), 40(1) or 41(1), the Scottish Ministers must consult the President of Tribunals.

Commencement Information

I14 S. 11 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Guiding principle S

12 Principle to be observed S

(1) In exercising their regulation-making functions under this Act, the Scottish Ministers must have regard to the principle below.

(2) In exercising their leadership functions under this Act, the Lord President and the President of Tribunals must have regard to the principle below.

(3) The principle is the need for proceedings before the Scottish Tribunals—

(a) to be accessible and fair, and

(b) to be handled quickly and effectively.

Commencement Information

I15 S. 12 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

PART 2 S Organisational arrangements

CHAPTER 1 S Membership types

Overview and main types S

13 Overview of membership S

(1) Each of the First-tier Tribunal and the Upper Tribunal is to consist of its ordinary, legal and judicial members.

(2) Any type of member of the First-tier Tribunal or the Upper Tribunal is not, merely by reason of having that type of membership of the Tribunal, precluded from having any type of membership of the other Tribunal.

(3) In this Act, the references to the members of the Scottish Tribunals are to—

(a) the ordinary and legal members of either or both of the Tribunals by virtue of sections 15 and 16, and

(b) the judicial members of either or both of the Tribunals by virtue of section 17 as read with section 19.

Modifications etc. (not altering text)

C1 S. 13(3) applied by 2008 asp 6 sch. 1 para. 16A(8) (as inserted (1.4.2015) by Tribunals (Scotland) Act 2014 (asp 10), s. 83(2), Sch. 9 para. 12(5) (with Sch. 9 para. 8); S.S.I. 2015/116, art. 2)

Commencement Information

I16 S. 13 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

14 Capacity of members S

(1) Membership of the Scottish Tribunals as an ordinary or legal member of the Tribunals has the effect of granting such a member judicial status and capacity for the purpose for which this section makes provision.

(2) For avoidance of doubt—

(a) a judicial member of the Scottish Tribunals has judicial status and capacity for the purpose for which this section makes provision by reason of holding judicial office,

(b) an extra judge derives judicial status and capacity in relation to [F1 the First-tier Tribunal or the Upper Tribunal (as the case may be)] for the purpose for which this section makes provision from authorisation to act as mentioned in section 18(4).

(3) This section makes provision—

(a) in the case of an ordinary, legal or judicial member of the Scottish Tribunals, for the purpose of holding the position of and acting as such a member,

(b) in the case of an extra judge of [F2 the First-tier Tribunal or] the Upper Tribunal, for the purpose of holding that position and acting as mentioned in section 18(4).

Textual Amendments

F1 Words in s. 14(2)(b) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(2)(a), 18(2)(3); S.S.I. 2022/146, reg. 2

F2 Words in s. 14(3)(b) inserted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(2)(b), 18(2)(3); S.S.I. 2022/146, reg. 2

Commencement Information

I17 S. 14 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

15 First-tier members S

(1) A person is an ordinary member of the First-tier Tribunal if the person is that type of member of the First-tier Tribunal through—

(a) transfer-in as such by virtue of section 29(b), or

(b) appointment as such by virtue of section 32(1).

(2) A person is a legal member of the First-tier Tribunal if the person is—

(a) that type of member of the First-tier Tribunal through—

(i) transfer-in as such by virtue of section 29(b), or

(ii) appointment as such by virtue of section 32(1), or

(b) however holding the position, a Chamber President or Deputy Chamber President in the First-tier Tribunal.

(3) Despite subsection (2)(b), a person assigned as a Temporary Chamber President in the First-tier Tribunal, if a judicial member of the Tribunal, remains such a member of the Tribunal.

Commencement Information

I18 S. 15 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

16 Upper members S

(1) A person is an ordinary member of the Upper Tribunal if the person is that type of member of the Upper Tribunal through—

(a) transfer-in as such by virtue of section 29(b), or

(b) appointment as such by virtue of section 32(3).

(2) A person is a legal member of the Upper Tribunal if the person is—

(a) that type of member of the Upper Tribunal through—

(i) transfer-in as such by virtue of section 29(b), or

(ii) appointment as such by virtue of section 32(3),

(b) however holding the position, a Chamber President in the First-tier Tribunal except a Temporary Chamber President, or

(c) however holding the position, a Vice-President of the Upper Tribunal.

(3) Despite subsection (2)(c)—

(a) a person assigned as a Vice-President of the Upper Tribunal under section 25(1) or (2) remains a judicial member of the Tribunal,

(b) a person assigned as a Temporary Vice-President of the Upper Tribunal, if a judicial member of the Tribunal, remains such a member of the Tribunal.

Commencement Information

I19 S. 16 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Judiciary eligible to sit S

17 Sheriffs and judges S

(1) By reason of holding judicial office, a person is eligible to act as a member of the First-tier Tribunal if the person is a sheriff (including a part-time sheriff).

(2) By reason of holding judicial office, a person is eligible to act as a member of the Upper Tribunal if the person is—

(a) apart from the Lord President and the President of Tribunals, a judge of the Court of Session (including a temporary judge),

(b) the Chairman of the Scottish Land Court, or

(c) a sheriff (except a part-time sheriff).

(3) A sheriff may act as a member of—

(a) the First-tier Tribunal, or

(b) the Upper Tribunal,

only if authorised to do so by the President of Tribunals.

(4) A judge of the Court of Session or the Chairman of the Scottish Land Court may act as a member of the Upper Tribunal only if authorised to do so by the President of Tribunals (but see next instead for the Lord President and the President of Tribunals).

(5) By reason of holding office within the Scottish Tribunals, each of the Lord President and the President of Tribunals is a member of the Upper Tribunal and needs no further authorisation to act as such.

(6) An authorisation for the purpose of subsection (3)(a) or (b) or (4)—

(a) requires—

(i) the Lord President's approval (including as to the person to be authorised), and

(ii) the agreement of the person concerned,

(b) in the case of a sheriff (apart from a sheriff principal), also requires the concurrence of the relevant sheriff principal.

(7) An authorisation for the purpose of subsection (3)(a) or (b) or (4) remains in effect until such time as the President of Tribunals may determine (with the same approval, agreement and concurrence as is referred to in subsection (6)).

Commencement Information

I20 S. 17 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

18 Authorisation of others S

[F3 (1) If requested to do so by the President of Tribunals, the Scottish Ministers may issue a temporary authorisation—

(a) for a person falling within subsection (1A) to assist in the disposal of the business of the First-tier Tribunal,

(b) for a person falling within subsection (2) to assist in the disposal of the business of the Upper Tribunal.]

[F4 (1A) A person falls within this subsection if the person is—

(a) a judge of a relevant UK court or tribunal,

(b) a former judge of a relevant UK court or tribunal,

(c) a judge of an overseas court or tribunal, or

(d) a judge of an international court or tribunal.]

(2) A person falls within this subsection if the person is—

(a) a former—

(i) judge of the Court of Session (including temporary judge),

(ii) Chairman of the Scottish Land Court, or

(iii) sheriff (except part-time sheriff), F5 ...

[F6 (b) a judge of a relevant UK court or tribunal,

(c) a former judge of a relevant UK court or tribunal,

(d) a judge of an overseas court or tribunal, or

(e) a judge of an international court or tribunal.]

(3) Any request for the purpose of subsection (1) may not be made without—

(a) the Lord President's approval, and

(b) the agreement of the person concerned.

(4) An authorisation under subsection (1) is for the person concerned to act as if a judicial member of [F7 the Tribunal concerned] during the period for which it is issued.

(5) The period mentioned in subsection (4)—

(a) requires the same approval and agreement as is referred to in subsection (3), and

(b) may be extended by the Scottish Ministers (with such approval and agreement).

(6) The Scottish Ministers may make payments of sums with respect to any time spent by a person while acting as mentioned in subsection (4) by virtue of authorisation under subsection (1).

(7) An authorisation under subsection (1) may not be issued if the person concerned—

(a) is aged 75 years or over, or

(b) has been removed from judicial office because of unfitness by reason of inability, neglect of duty or misbehaviour (or is for the time being suspended from such office in connection with an investigation into the question of such unfitness).

[F8 (8) In the case of a person mentioned in subsection (1A)(a), (c) or (d) or (2)(b), (d) or (e), subsections (1) and (5) are subject to such further arrangements as the Scottish Ministers may make with a governmental or other body responsible for the administration of the court or tribunal concerned, or its judiciary, for the purposes of those subsections.

(8A) In the case of a person mentioned in subsection (1A) or (2)(b), (c), (d) or (e), if the person has not previously taken the required oaths, the person must take them in the presence of the President of Tribunals before acting as mentioned in subsection (4).]

(9) In addition—

(a) the previous taking by a person of the required oaths counts (so far as necessary) as if it were the taking of them in connection with acting as mentioned in subsection (4),

(b) section 3 applies in relation to a person who is authorised to act as mentioned in subsection (4)—

(i) as it does in relation to the members of the Scottish Tribunals, and

(ii) during the period for which the relevant authorisation is issued.

[F9 (10) In this section—

• “an international court or tribunal” means a court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—

  (a)

  an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or

  (b)

  a resolution of the Security Council or General Assembly of the United Nations,

• “an overseas court or tribunal” means a court or tribunal established under the law of a country or territory outwith the United Kingdom,

• “a relevant UK court or tribunal” means a court or tribunal established under the law of one or more parts of the United Kingdom, excluding a court or tribunal established under the law of Scotland only,

• “the required oaths” means the oaths of allegiance and the judicial oath as set out in the Promissory Oaths Act 1868.]

Textual Amendments

F3 S. 18(1) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(2), 18(2)(3); S.S.I. 2022/146, reg. 2

F4 S. 18(1A) inserted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(3), 18(2)(3); S.S.I. 2022/146, reg. 2

F5 Word in s. 18(2)(a)(iii) repealed (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(4)(a), 18(2)(3); S.S.I. 2022/146, reg. 2

F6 S. 18(2)(b)-(e) substituted for s. 18(2)(b) (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(4)(b), 18(2)(3); S.S.I. 2022/146, reg. 2

F7 Words in s. 18(4) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(5), 18(2)(3); S.S.I. 2022/146, reg. 2

F8 S. 18(8)(8A) substituted for s. 18(8) (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(6), 18(2)(3); S.S.I. 2022/146, reg. 2

F9 S. 18(10) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 15(7), 18(2)(3); S.S.I. 2022/146, reg. 2

Commencement Information

I21 S. 18 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

19 Judicial membership S

(1) In this Act, a reference to a judicial member of the First-tier Tribunal is to a sheriff who is authorised for the purpose of section 17(3)(a).

(2) In this Act, a reference to a judicial member of the Upper Tribunal is to—

(a) the Lord President or the President of Tribunals, or

(b) a person who is authorised for the purpose of section 17(3)(b) or (4).

(3) A reference in this Act to a judicial member [F10 of the First-tier Tribunal or] of the Upper Tribunal does not include an extra judge even where authorised to act as mentioned in section 18(4).

[F11 (4) In this Act—

(a) a reference to an extra judge in relation to the First-tier Tribunal is to a person falling within section 18(1A) (as read with section 18(4)),

(b) a reference to an extra judge in relation to the Upper Tribunal is to a person falling within section 18(2) (as read with section 18(4)).]

Textual Amendments

F10 Words in s. 19(3) inserted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(3)(a), 18(2)(3); S.S.I. 2022/146, reg. 2

F11 S. 19(4) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(3)(b), 18(2)(3); S.S.I. 2022/146, reg. 2

Commencement Information

I22 S. 19 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

CHAPTER 2 S Internal structure

Structure of First-tier Tribunal S

20 Chambers in the Tribunal S

(1) The First-tier Tribunal is to be organised into a number of chambers, having regard to—

(a) the different subject-matters falling within the Tribunal's jurisdiction, and

(b) any other factors relevant in relation to the exercise of the Tribunal's functions.

(2) Accordingly, the Scottish Ministers may by regulations make provision for and in connection with—

(a) the organisation of the Tribunal as required by subsection (1),

(b) the allocation of the Tribunal's functions between the chambers.

Commencement Information

I23 S. 20 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

21 Chamber Presidents S

(1) Each chamber of the First-tier Tribunal is to have—

(a) a single Chamber President to preside over the chamber, or

(b) two Chamber Presidents to preside over the chamber.

(2) A Chamber President may not preside over more than one chamber of the Tribunal at the same time.

(3) In this Act—

(a) a reference to a Chamber President in the First-tier Tribunal is to a Chamber President of a chamber of the Tribunal,

(b) where a chamber of the Tribunal has two Chamber Presidents, a reference to a Chamber President of such a chamber is to either or both of them (as the context requires).

Modifications etc. (not altering text)

C2 S. 21(1) excluded (12.1.2018) by The First-tier Tribunal for Scotland (Transfer of Functions of the Scottish Charity Appeals Panel) Regulations 2018 (S.S.I. 2018/1), regs. 1(1), 4

Commencement Information

I24 S. 21 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

22 Appointment to post S

(1) It is for the Scottish Ministers to make an appointment of a Chamber President to that position.

(2) Before making an appointment under subsection (1), the Scottish Ministers must consult the Lord President (including as to the person to be appointed).

(3) A person is eligible for appointment under subsection (1) only if the person is—

(a) a legal member of the Upper Tribunal, or

(b) if not falling within paragraph (a), eligible to be appointed as such a member of the Tribunal (whether or not already any type of member of the First-tier or Upper Tribunal).

(4) An appointment made under subsection (1) is for the Chamber President to preside over a particular chamber of the Tribunal.

Commencement Information

I25 S. 22 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Structure of Upper Tribunal S

23 Divisions of the Tribunal S

(1) The Upper Tribunal is to be organised into a number of divisions, having regard to—

(a) the different subject-matters falling within the Tribunal's jurisdiction, and

(b) any other factors relevant in relation to the exercise of the Tribunal's functions.

(2) Accordingly, the Scottish Ministers may by regulations make provision for and in connection with—

(a) the organisation of the Tribunal as required by subsection (1),

(b) the allocation of the Tribunal's functions between the divisions.

Commencement Information

I26 S. 23 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

24 Vice-Presidents S

(1) Each division of the Upper Tribunal is to have—

(a) a single Vice-President to preside over the division, or

(b) two Vice-Presidents to preside over the division.

(2) A Vice-President may not preside over more than one division of the Tribunal at the same time.

(3) Subsections (1) and (2) are subject to section 25(1)(b).

(4) In this Act—

(a) a reference to a Vice-President of the Upper Tribunal is to a Vice-President of a division of the Tribunal,

(b) where a division of the Tribunal has two Vice-Presidents, a reference to a Vice-President of such a division is to either or both of them (as the context requires).

Commencement Information

I27 S. 24 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

25 Assignment to post S

(1) The President of Tribunals may assign himself or herself—

(a) as a Vice-President of the Upper Tribunal,

(b) to preside over one or more than one division of the Tribunal.

(2) Apart from the Lord President, any other judicial member of the Upper Tribunal may be assigned by the President of Tribunals—

(a) as a Vice-President of the Tribunal,

(b) to preside over a particular division of the Tribunal.

(3) Assignment under subsection (1)—

(a) remains in effect until such time as the President of Tribunals may determine,

(b) does not affect the exercise by the President of Tribunals of the functions arising in that capacity.

(4) Assignment under subsection (2)—

(a) requires—

(i) the Lord President's approval (including as to the judicial member to be assigned),

(ii) the assignee's agreement,

(b) remains in effect until such time as the President of Tribunals may determine (with such approval and agreement),

(c) does not affect the exercise by the assignee of any other functions as respects the Scottish Tribunals.

Commencement Information

I28 S. 25 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

26 Appointment to post S

(1) If requested to do so by the President of Tribunals, the Scottish Ministers may appoint a person as a Vice-President of the Upper Tribunal.

(2) Before making an appointment under subsection (1), the Scottish Ministers must consult the Lord President (including as to the person to be appointed).

(3) A person is eligible for appointment as a Vice-President only if the person is—

(a) a legal member of the Upper Tribunal, or

(b) if not falling within paragraph (a), eligible to be appointed as such a member of the Tribunal (whether or not already any type of member of the First-tier or Upper Tribunal).

(4) An appointment made under subsection (1) is for the Vice-President to preside over a particular division of the Tribunal.

Commencement Information

I29 S. 26 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

PART 3 S Acquisition of functions

Transfer-in from listed tribunals S

27 Listed tribunals S

(1) For the purposes of this Part, the listed tribunals are the tribunals for the time being included in the list in Part 1 of schedule 1 as read in conjunction with the further specification in Part 2 of that schedule.

(2) The Scottish Ministers may by regulations modify—

(a) the list in Part 1 of schedule 1,

(b) the further specification in Part 2 of that schedule.

(3) A tribunal may be added to the list in Part 1 of schedule 1 only if it is established by or under an enactment (whenever passed or made).

(4) For the purposes of this section, a reference to a tribunal includes any body, office-holder or individual having decision-making functions that are exercisable as follows (but only as far as having such or other functions that are so exercisable)—

(a) as, or in the manner of, a tribunal, and

(b) with respect to the determination or resolution of legal, administrative or other disputes between parties of any kind.

(5) Despite that generality, a reference to a tribunal does not for the purposes of this section include—

(a) any of the Scottish courts referred to in section 2 of the Judiciary and Courts (Scotland) Act 2008 (see subsection (6) of that section),

(b) the Scottish Land Court,

(c) a tribunal—

(i) constituted under section 35 of the Judiciary and Courts (Scotland) Act 2008,

(ii) constituted under [F12 section 21 of the Courts Reform (Scotland) Act 2014], or

(iii) appointed under section 71(2) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007, or

(d) a fitness assessment tribunal constituted under paragraph 13 of schedule 8.

Textual Amendments

F12 Words in s. 27(5)(c)(ii) substituted (1.4.2016) by The Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2016 (S.S.I. 2016/142), arts. 1, 4

Commencement Information

I30 S. 27 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

28 Transfer-in of functions S

(1) The functions of each of the listed tribunals are to become the functions of the Scottish Tribunals at such time and in so far as the Scottish Ministers consider appropriate.

(2) Accordingly, the Scottish Ministers may by regulations provide for some or all of the functions of a listed tribunal to be transferred from it—

(a) to the First-tier Tribunal only,

(b) to the Upper Tribunal only, or

(c) to the First-tier Tribunal and the Upper Tribunal.

(3) If regulations under subsection (2) provide for any functions of a listed tribunal to be transferred as mentioned in paragraph (c) of that subsection, the regulations may also—

(a) give particular functions to one of the Tribunals (but not the other), or

(b) make provision of the sort allowed by subsection (5).

(4) Where by virtue of regulations made under subsection (2) any functions of a listed tribunal have been transferred as mentioned in paragraph (a), (b) or (c) of that subsection, the Scottish Ministers may by regulations—

(a) provide for the functions, or particular functions, to be redistributed between the Tribunals by—

(i) transferring them from either of the Tribunals to the other,

(ii) taking them away from one of the Tribunals (but not the other), or

(iii) causing them to be exercisable by both of the Tribunals (instead of one only),

(b) if they are so redistributed by causing them to be exercisable by both of the Tribunals, also make provision of the sort allowed by subsection (5).

(5) This subsection allows provision enabling the question as to which of the Tribunals is to exercise particular functions in a specific case or in specified circumstances to be determined, including as against any prescribed criteria—

(a) in accordance with Tribunal Rules, or

(b) by the President of Tribunals (whether or not by reference to Tribunal Rules).

(6) Regulations under subsection (2) or (4) may include provision for the purposes of or in connection with, or for giving full effect to, a transfer or redistribution of any functions to which the regulations apply.

(7) Provision included in such regulations by virtue of subsection (6) may modify any enactment concerning a listed tribunal.

(8) A particular instrument containing regulations under subsection (2) may not relate to the functions of more than one of the listed tribunals.

Commencement Information

I31 S. 28 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

29 Transfer-in of members S

Schedule 2 contains provision for the transfer of certain persons from the listed tribunals into the Scottish Tribunals to hold—

(a) particular named positions,

(b) ordinary or legal membership generally.

Commencement Information

I32 S. 29 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Conferral of functions by another Act S

30 Accommodation of functions S

(1) Subsections (2) and (3) apply where any functions are conferred on either or both of the Scottish Tribunals by or under an Act other than this Act.

(2) The Scottish Ministers may by regulations modify this Act so that this Act specifies the relevant provisions of the other Act (whether in existing or new provisions of this Act).

(3) The Scottish Ministers may by regulations modify this Act or the other Act so as to make the functions exercisable in accordance with or subject to (as far as not already so exercisable)—

(a) the whole of this Act, or

(b) particular provisions of this Act.

Commencement Information

I33 S. 30 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

31 Redistribution of functions S

(1) Where any functions are conferred on either or both of the Scottish Tribunals by or under an Act other than this Act, the Scottish Ministers may by regulations—

(a) provide for the functions, or particular functions, to be redistributed between the Tribunals by—

(i) transferring them from either of the Tribunals to the other,

(ii) taking them away from one of the Tribunals (but not the other), or

(iii) causing them to be exercisable by both of the Tribunals (instead of one only),

(b) if they are so redistributed by causing them to be exercisable by both of the Tribunals, also make provision of the sort allowed by subsection (2).

(2) This subsection allows provision enabling the question as to which of the Tribunals is to exercise particular functions in a specific case or in specified circumstances to be determined, including as against any prescribed criteria—

(a) in accordance with Tribunal Rules, or

(b) by the President of Tribunals (whether or not by reference to Tribunal Rules).

(3) Regulations under subsection (1) may include provision for the purposes of or in connection with, or for giving full effect to, a redistribution of any functions to which the regulations apply.

(4) Provision included in such regulations by virtue of subsection (3) may modify any enactment relating to the functions being redistributed by the regulations.

(5) Subsection (1) is subject to any express provision in the other Act prohibiting or limiting the making of regulations under that subsection.

Commencement Information

I34 S. 31 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

PART 4 S More about membership etc.

Appointment and assignment S

32 Scheduled provisions S

(1) Schedule 3 contains provision for the First-tier Tribunal about eligibility for and appointment to—

(a) ordinary membership,

(b) legal membership.

(2) Schedule 4 contains provision for the First-tier Tribunal relating to—

(a) appointment or assignment to—

(i) a Deputy position,

(ii) a Temporary position,

(b) assignment of ordinary, legal and judicial members.

(3) Schedule 5 contains provision for the Upper Tribunal about eligibility for and appointment to—

(a) ordinary membership,

(b) legal membership.

(4) Schedule 6 contains provision for the Upper Tribunal relating to—

(a) assignment to a Temporary position,

(b) assignment of ordinary, legal and judicial members.

Commencement Information

I35 S. 32 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

33 Assignment policy S

(1) The Lord President must publish a document recording the policy adopted in relation to the assignment of the ordinary, legal and judicial members within each of the First-tier Tribunal and the Upper Tribunal.

(2) The Lord President must—

(a) keep the assignment policy under review,

(b) re-publish it if it is amended materially.

(3) The assignment policy—

(a) must be in terms designed to secure that appropriate use is made of the knowledge and experience of the members of the Scottish Tribunals (including their expertise in a particular area of the law),

(b) may include—

(i) specific provision for each of the Tribunals,

(ii) different provision for different purposes in any other respects.

Commencement Information

I36 S. 33 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Training, conditions and conduct S

34 Training and review S

(1) The Lord President is responsible for making and maintaining appropriate arrangements for the training and guidance—

(a) of the ordinary members, legal members and judicial members of the Scottish Tribunals,

(b) for the purpose of acting as mentioned in section 18(4), of any extra judges who are authorised to act as so mentioned.

(2) The Lord President may make arrangements for the review of the ordinary members and legal members of the Scottish Tribunals.

(3) Arrangements under subsection (1) or (2) may (in particular) require participation in activities for the purpose of training, guidance or review.

(4) For the purpose of subsection (2), “review” includes ad hoc or continuing review of professional competency and development.

Commencement Information

I37 S. 34 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

35 Conditions of membership etc. S

(1) Schedule 7 contains provision for the terms and conditions on which ordinary and legal members of the Scottish Tribunals hold their positions.

(2) The Scottish Ministers may by regulations make provision enabling a relevant appointment or transfer to be made or have effect in such terms as to cause a person to hold permanently the type of membership or (as the case may be) particular position in question.

(3) The Scottish Ministers must consult the President of Tribunals before—

(a) making regulations under subsection (2), or

(b) exercising in relation to a relevant appointment or transfer the discretion allowed by such regulations.

(4) The operation of paragraphs 2 to 8 of schedule 7 is subject to provision made by regulations under subsection (2).

(5) For the purposes of subsection (2)—

(a) a relevant appointment is appointment or reappointment by the Scottish Ministers—

(i) of a person as an ordinary or legal member of the Scottish Tribunals,

(ii) of a legal member of the First-tier Tribunal as a Chamber President or Deputy Chamber President in the Tribunal, or

(iii) of a legal member of the Upper Tribunal as a Vice-President of the Tribunal,

(b) a relevant transfer is transfer-in to the Scottish Tribunals—

(i) of a person as an ordinary or legal member of the Tribunals by virtue of section 29(b), or

(ii) of a person to a particular position within the Tribunals by virtue of section 29(a).

Commencement Information

I38 S. 35 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

36 Conduct and fitness etc. S

Schedule 8 contains provision for and in connection with—

(a) investigation of members' conduct and imposition of disciplinary measures,

(b) assessment of members' fitness for position and removal from position.

Commencement Information

I39 S. 36 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

PART 5 S Decision-making and composition

Decisions in First-tier Tribunal S

37 Decisions in the Tribunal S

(1) The First-tier Tribunal's function of deciding any matter in a case before the Tribunal is to be exercised by one, or two or more, of the members of the Tribunal chamber to which the case is allocated.

(2) The member or members are to be chosen by the Chamber President of the chamber (who may choose himself or herself).

(3) The Chamber President's discretion in choosing the member or members is subject to—

(a) any relevant provisions in regulations made under section 38(1),

(b) any relevant directions given by virtue of section 47(5)(b).

(4) In this section—

• “Tribunal chamber” means chamber of the Tribunal,

• [F13 “member”, in relation to a Tribunal chamber—

  (a)

  means an ordinary, legal or judicial member of the Tribunal who is assigned to the chamber,

  (b)

  while assigned to the chamber, also includes an extra judge who is authorised to act as mentioned in section 18(4).]

Textual Amendments

F13 Words in s. 37(4) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(4), 18(2)(3); S.S.I. 2022/146, reg. 2

Commencement Information

I40 S. 37 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

38 Composition of the Tribunal S

(1) The Scottish Ministers may by regulations make provision for determining the composition of the First-tier Tribunal when convened to decide any matter in a case before the Tribunal.

(2) Where regulations under subsection (1) provide for a matter to be decided by a single member of the Tribunal, the regulations must include provision for determining whether the single member is to be an ordinary, legal or judicial member of the Tribunal.

(3) Where regulations under subsection (1) provide for a matter to be decided by two or more members of the Tribunal, the regulations must include provision for determining how many (if any) of those members are to be—

(a) an ordinary member,

(b) a legal member,

(c) a judicial member.

(4) Regulations under subsection (1) may include provision for determining what relevant criteria are to be met by an ordinary member of the Tribunal for the member's involvement in decision-making in particular types of case.

[F14 (4A) Regulations under subsection (1) may include provision about the involvement in decision-making of an extra judge who is authorised to act as mentioned in section 18(4).]

(5) In subsection (4), “relevant criteria” includes criteria as to qualifications, experience and training.

Textual Amendments

F14 S. 38(4A) inserted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(5), 18(2)(3); S.S.I. 2022/146, reg. 2

Commencement Information

I41 S. 38 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Decisions in Upper Tribunal S

39 Decisions in the Tribunal S

(1) The Upper Tribunal's function of deciding any matter in a case before the Tribunal is to be exercised by one, or two or more, of the members of the Tribunal division to which the case is allocated.

(2) The member or members are to be chosen by the Vice-President of the division (who may choose himself or herself).

(3) The Vice-President's discretion in choosing the member or members is subject to—

(a) subsection (4),

(b) any relevant provisions in regulations made under section 40(1),

(c) any relevant directions given by virtue of section 49(5)(b).

(4) Each of the Lord President and the President of Tribunals has the right to be chosen and may exercise that right as he or she considers appropriate (but this is also subject to any relevant provisions in regulations made under section 40(1)).

(5) In this section—

• “Tribunal division” means division of the Tribunal,

• “member”, in relation to a Tribunal division—

  (a)

  means ordinary, legal or judicial member of the Tribunal who is assigned to the division,

  (b)

  while assigned to the division, also includes an extra judge who is authorised to act as mentioned in section 18(4).

Commencement Information

I42 S. 39 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

40 Composition of the Tribunal S

(1) The Scottish Ministers may by regulations make provision for determining the composition of the Upper Tribunal when convened to decide any matter in a case before the Tribunal.

(2) Regulations under subsection (1) may treat separately the Tribunal's decision-making functions—

(a) at first instance,

(b) on review or appeal.

(3) Where regulations under subsection (1) provide for a matter to be decided by a single member of the Tribunal, the regulations must include provision for determining whether the single member is to be an ordinary, legal or judicial member of the Tribunal.

(4) Where regulations under subsection (1) provide for a matter to be decided by two or more members of the Tribunal, the regulations must include provision for determining how many (if any) of those members are to be—

(a) an ordinary member,

(b) a legal member,

(c) a judicial member.

(5) Regulations under subsection (1) may include provision about the involvement in decision-making of—

(a) a judicial member of a particular description,

(b) an extra judge who is authorised to act as mentioned in section 18(4).

(6) Regulations under subsection (1) may include provision for determining what relevant criteria are to be met by an ordinary member of the Tribunal for the member's involvement in decision-making in particular types of case.

(7) In subsection (6), “relevant criteria” includes criteria as to qualifications, experience and training.

Commencement Information

I43 S. 40 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Voting where two or more members S

41 Voting for decisions S

(1) The Scottish Ministers may by regulations make provision for the purposes of sections 37(1) and 39(1) in so far as a matter in a case before the First-tier Tribunal or the Upper Tribunal is to be decided by two or more members of the Tribunal, including—

(a) for a decision to be made unanimously or by majority,

(b) where a decision is to be made by majority, for the chairing member to have a casting vote in the event of a tie.

[F15 (2) For the purposes of subsection (1), an extra judge in relation to the First-tier Tribunal or the Upper Tribunal is to be treated as if a member of the Tribunal concerned (with section 42(1) so applying accordingly).]

Textual Amendments

F15 S. 41(2) substituted (13.5.2022) by Social Security Administration and Tribunal Membership (Scotland) Act 2020 (asp 18), ss. 16(6), 18(2)(3); S.S.I. 2022/146, reg. 2

Commencement Information

I44 S. 41 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

42 Chairing members S

(1) Tribunal Rules may make provision for determining the question as to who is to be the chairing member where a matter in a case before the First-tier Tribunal or the Upper Tribunal is to be decided by two or more members of the Tribunal.

(2) Rules making provision as described in subsection (1) may (in particular)—

(a) allow the President of Tribunals to determine the question,

(b) specify criteria as against which the question is to be determined (including by reference to type of member or particular expertise).

Commencement Information

I45 S. 42 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

PART 6 S Review or appeal of decisions

CHAPTER 1 S Tribunal decisions

Internal review S

43 Review of decisions S

(1) Each of the First-tier Tribunal and the Upper Tribunal may review a decision made by it in any matter in a case before it.

(2) A decision is reviewable—

(a) at the Tribunal's own instance, or

(b) at the request of a party in the case.

(3) But—

(a) there can be no review under this section of an excluded decision,

(b) Tribunal Rules may make provision—

(i) excluding other decisions from a review under this section,

(ii) otherwise restricting the availability of a review under this section (including by specifying grounds for a review).

(4) The exercise of discretion whether a decision should be reviewed under this section cannot give rise to a review under this section or to an appeal under section 46 or 48.

(5) A right of appeal under section 46 or 48 is not affected by the availability or otherwise of a review under this section.

Modifications etc. (not altering text)

C3 S. 43 excluded (22.10.2018) by Social Security (Scotland) Act 2018 (asp 9), ss. 61(5)(a), 99(2); S.S.I. 2018/298, reg. 2(1)(j) (with reg. 3(2))

C4 S. 43 excluded (24.12.2020) by The Carer’s Allowance Supplement and Young Carer Grants (Residence Requirements and Procedural Provisions) (EU Exit) (Scotland) Regulations 2020 (S.S.I. 2020/475), reg. 1, sch. 2 para. 13(5)(a)

Commencement Information

I46 S. 43 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

44 Actions on review S

(1) In a review by the First-tier Tribunal or the Upper Tribunal under section 43, the Tribunal may—

(a) take no action,

(b) set the decision aside, or

(c) correct a minor or accidental error contained in the decision.

(2) Where a decision is set aside by the First-tier Tribunal in a review, it may—

(a) re-decide the matter concerned,

(b) refer that matter to the Upper Tribunal, or

(c) make such other order as the First-tier Tribunal considers appropriate.

(3) If a decision set aside by the First-tier Tribunal in a review is referred to the Upper Tribunal, the Upper Tribunal—

(a) may re-decide the matter concerned or make such other order as it considers appropriate,

(b) in re-deciding that matter, may do anything that the First-tier Tribunal could do if re-deciding it.

(4) Where a decision is set aside by the Upper Tribunal in a review, it may—

(a) re-decide the matter concerned, or

(b) make such other order as it considers appropriate.

(5) In re-deciding a matter under this section, the First-tier or Upper Tribunal may reach such findings in fact as it considers appropriate.

Commencement Information

I47 S. 44 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

45 Review once only S

(1) A particular decision of the First-tier Tribunal or the Upper Tribunal may not be reviewed under section 43 more than once.

(2) These are to be regarded as different decisions for the purpose of subsection (1)—

(a) a decision set aside under section 44(1)(b),

(b) a decision made by virtue of section 44(2)(a), (3)(a) or (4).

(3) Nothing in this section prevents the taking, after a review in which the decision concerned is not set aside, of administrative steps by the First-tier or Upper Tribunal to correct a minor or accidental error made in disposing of the review.

Commencement Information

I48 S. 45 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Appeal from First-tier Tribunal S

46 Appeal from the Tribunal S

(1) A decision of the First-tier Tribunal in any matter in a case before the Tribunal may be appealed to the Upper Tribunal.

(2) An appeal under this section is to be made—

(a) by a party in the case,

(b) on a point of law only.

(3) An appeal under this section requires the permission of—

(a) the First-tier Tribunal, or

(b) if the First-tier Tribunal refuses its permission, the Upper Tribunal.

(4) Such permission may be given in relation to an appeal under this section only if the First-tier Tribunal or (as the case may be) the Upper Tribunal is satisfied that there are arguable grounds for the appeal.

(5) This section—

(a) is subject to sections 43(4) and 55(2),

(b) does not apply in relation to an excluded decision.

Modifications etc. (not altering text)

C5 S. 46 excluded (22.10.2018) by Social Security (Scotland) Act 2018 (asp 9), ss. 61(5)(b), 99(2); S.S.I. 2018/298, reg. 2(1)(j) (with reg. 3(2))

C6 S. 46 excluded (24.12.2020) by The Carer’s Allowance Supplement and Young Carer Grants (Residence Requirements and Procedural Provisions) (EU Exit) (Scotland) Regulations 2020 (S.S.I. 2020/475), reg. 1, sch. 2 para. 13(5)(b)

Commencement Information

I49 S. 46 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

47 Disposal of an appeal S

(1) In an appeal under section 46, the Upper Tribunal may uphold or quash the decision on the point of law in question.

(2) If the Upper Tribunal quashes the decision, it may—

(a) re-make the decision,

(b) remit the case to the First-tier Tribunal, or

(c) make such other order as the Upper Tribunal considers appropriate.

(3) In re-making the decision, the Upper Tribunal may—

(a) do anything that the First-tier Tribunal could do if re-making the decision,

(b) reach such findings in fact as the Upper Tribunal considers appropriate.

(4) In remitting the case, the Upper Tribunal may give directions for the First-tier Tribunal's reconsideration of the case.

(5) Such directions may relate to—

(a) issues of law or fact (including the Upper Tribunal's opinion on any relevant point),

(b) procedural issues (including as to the members to be chosen to reconsider the case).

Commencement Information

I50 S. 47 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Appeal from Upper Tribunal S

48 Appeal from the Tribunal S

(1) A decision of the Upper Tribunal in any matter in a case before the Tribunal may be appealed to the Court of Session.

(2) An appeal under this section is to be made—

(a) by a party in the case,

(b) on a point of law only.

(3) An appeal under this section requires the permission of—

(a) the Upper Tribunal, or

(b) if the Upper Tribunal refuses its permission, the Court of Session.

(4) Such permission may be given in relation to an appeal under this section only if the Upper Tribunal or (as the case may be) the Court of Session is satisfied that there are arguable grounds for the appeal.

(5) This section—

(a) is subject to sections 43(4) and 55(2),

(b) does not apply in relation to an excluded decision.

Commencement Information

I51 S. 48 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

49 Disposal of an appeal S

(1) In an appeal under section 48, the Court of Session may uphold or quash the decision on the point of law in question.

(2) If the Court quashes the decision, it may—

(a) re-make the decision,

(b) remit the case to the Upper Tribunal, or

(c) make such other order as the Court considers appropriate.

(3) In re-making the decision, the Court may—

(a) do anything that the Upper Tribunal could do if re-making the decision,

(b) reach such findings in fact as the Court considers appropriate.

(4) In remitting the case, the Court may give directions for the Upper Tribunal's reconsideration of the case.

(5) Such directions may relate to—

(a) issues of law or fact (including the Court's opinion on any relevant point),

(b) procedural issues (including as to the members to be chosen to reconsider the case).

Commencement Information

I52 S. 49 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

50 Procedure on second appeal S

(1) Section 48(4) is subject to subsections (3) and (4) as regards a second appeal.

(2) Section 49 is subject to subsections (5) and (6) as regards a second appeal.

(3) For the purpose of subsection (1), the Upper Tribunal or (as the case may be) the Court of Session may not give its permission to the making of a second appeal unless also satisfied that subsection (4) applies.

(4) This subsection applies where, in relation to the matter in question—

(a) a second appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for allowing a second appeal to proceed.

(5) For the purpose of subsection (2), subsections (2)(b) and (3)(a) of section 49 have effect in relation to a second appeal as if the references in them to the Upper Tribunal include (as alternatives) references to the First-tier Tribunal.

(6) Where, in exercising the choice arising by virtue of subsection (5) (and instead of re-making the decision in question), the Court of Session remits the case to the Upper Tribunal rather than the First-tier Tribunal—

(a) the Upper Tribunal, instead of reconsidering the case itself, may remit the case to the First-tier Tribunal,

(b) if the Upper Tribunal does so, it must send to the First-tier Tribunal any directions accompanying the Court's remittal of the case to the Upper Tribunal.

(7) In this section, “second appeal” means appeal under section 48 against a decision in an appeal under section 46.

Commencement Information

I53 S. 50 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Excluded decisions S

51 Excluded decisions S

A decision falling within any of sections 52 to 54 is an excluded decision for the purposes of—

(a) a review under section 43,

(b) an appeal under section 46 or 48.

Commencement Information

I54 S. 51 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

52 Decisions on review S

(1) Falling within this section is—

(a) a decision set aside in a review under section 43 (see section 44(1)(b)),

(b) a decision in such a review, except a decision of the kind mentioned in subsection (2).

(2) That is, a decision made by virtue of section 44(2)(a), (3)(a) or (4) (and accordingly a decision so made is not an excluded decision).

Commencement Information

I55 S. 52 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

53 Other appeal rights S

(1) Falling within this section is a decision against which there is a right of appeal under an enactment apart from this Act.

(2) The Scottish Ministers may by regulations make provision—

(a) to which subsection (1) is subject (for example, by specifying an exception to what falls within this section),

(b) for a right of appeal under an enactment apart from this Act to cease to be exercisable in relation to a decision no longer falling within this section.

Commencement Information

I56 S. 53 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

54 Position on transfer-in S

(1) Where any functions are transferred to the First-tier Tribunal or Upper Tribunal by virtue of regulations made under section 28(2), a decision made in the exercise of the functions falls within this section if it is specified in regulations made by the Scottish Ministers under this subsection.

(2) Regulations under subsection (1) may specify a decision only if, immediately before the transfer of the functions in the exercise of which it is made, there is no right of appeal against the decision.

Commencement Information

I57 S. 54 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Miscellaneous procedure S

55 Process for permission S

(1) The Scottish Ministers may by regulations specify a time limit within which the permission required by section 46(3) or 48(3) must be sought.

(2) A refusal to give the permission required by section 46(3) or 48(3) is not—

(a) reviewable under section 43, or

(b) appealable under section 46 or 48.

Commencement Information

I58 S. 55 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

56 Participation of non-parties S

(1) Subsection (2) applies for the purposes of—

(a) a review under section 43,

(b) an appeal under section 46 or 48.

(2) The Scottish Ministers may by regulations make provision extending any reference to a party in a case so that it also includes a person falling within a specified description.

Commencement Information

I59 S. 56 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

CHAPTER 2 S Special jurisdiction

57 Judicial review cases S

(1) Subsection (2) applies where a petition is made to the Court of Session for judicial review.

(2) The Court may by order remit the petition to the Upper Tribunal if—

(a) both of Conditions A and B are met, and

(b) having regard to the functions and expertise of the Tribunal in relation to the subject-matter of the petition, the Court considers that it is appropriate to do so.

(3) Condition A is that the petition does not seek anything other than the exercise of the Court's judicial review function.

(4) Condition B is that the petition falls within a category specified by an act of sederunt made by the Court for the purpose of this subsection.

Commencement Information

I60 S. 57 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

[F16 57A Procedural steps where petition remitted S

(1) This section applies where the Court of Session remits a petition for judicial review under section 57(2).

(2) It is for the Upper Tribunal to determine—

(a) whether the petition has been made timeously, and

(b) whether to grant permission for the petition to proceed under section 27B of the Court of Session Act 1988 (“the 1988 Act”) (requirement for permission).

(3) Accordingly—

(a) the Upper Tribunal has the same powers in relation to the petition as the Court of Session would have had in relation to it under sections 27A to 27C of the 1988 Act,

(b) sections 27C and 27D of that Act apply in relation to a decision of the Upper Tribunal under section 27B(1) of that Act as they apply in relation to such a decision of the Court of Session.

(4) The references in section 27C(3) and (4) of the 1988 Act (oral hearings where permission refused) to a different Lord Ordinary from the one who refused or granted permission are to be read as references to different members of the Tribunal from those of whom it was composed when it refused or granted permission.]

Textual Amendments

F16 S. 57A inserted (22.9.2015) by Courts Reform (Scotland) Act 2014 (asp 18), s. 138(2), Sch. 5 para. 24; S.S.I. 2015/247, art. 2, Sch.

58 Decision on remittal S

(1) The Upper Tribunal is to determine the issues raised in each petition remitted to it under section 57.

(2) In relation to a petition so remitted, the Upper Tribunal—

(a) has the same powers as the Court of Session has on a petition to it for judicial review,

(b) is to apply the same principles as the Court applies in the exercise of its judicial review function.

(3) An order made by the Upper Tribunal on a petition so remitted has the same effect as an order made by the Court of Session on a petition for judicial review (and the order is therefore enforceable accordingly).

(4) Subsection (3) does not limit the operation of section 48 in connection with a determination under subsection (1).

Commencement Information

I61 S. 58 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

59 Additional matters S

(1) Where a petition is remitted to the Upper Tribunal under section 57, any order made or step taken by the Court of Session in relation to the petition is to be treated as if made or taken by the Tribunal (except the order by which the petition is so remitted (or an associated step)).

(2) Tribunal Rules may make further provision with respect to the exercise by the Upper Tribunal of its functions under this Chapter.

Commencement Information

I62 S. 59 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

60 Meaning of judicial review S

In this Chapter—

(a) a reference to a petition to the Court of Session for judicial review is to an application to the supervisory jurisdiction of the Court,

(b) a reference to the exercise of the Court of Session's judicial review function is to the exercise of the Court's supervisory jurisdiction (and includes the making of any order in connection with or in consequence of the exercise of that function).

Commencement Information

I63 S. 60 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

PART 7 S Powers, procedure and administration

CHAPTER 1 S Powers and enforcement

Cases and proceedings S

61 Venue for hearings S

(1) Each of the First-tier Tribunal and the Upper Tribunal may be convened at any time and place in Scotland to hear or decide a case or for any other purpose relating to its functions.

(2) Subsection (1) is subject to any provision made by Tribunal Rules as to the question of when and where in Scotland the Scottish Tribunals are to be convened (and such Rules may allow the President of Tribunals to determine the question).

Commencement Information

I64 S. 61 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

62 Conduct of cases S

(1) In relation to the things mentioned in subsection (3), each of the First-tier Tribunal and the Upper Tribunal has such powers, rights, privileges and other authority with respect to any case before it as are provided for in Tribunal Rules.

(2) Rules making provision for the purpose of subsection (1) may (in particular) do so in relation to any kind of authority by reference to any authority of a relevant description exercisable by the sheriff or the Court of Session.

(3) The things are—

(a) the citation, attendance or examination of witnesses,

(b) the recovery, production or inspection of relevant materials,

(c) the commissioning of reports of any relevant type,

(d) other procedural, evidential or similar measures.

(4) In subsection (3)(b), “materials” means documents and other items.

Commencement Information

I65 S. 62 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

63 Enforcement of decisions S

(1) A decision made by the First-tier Tribunal or the Upper Tribunal in any matter in a case before it is enforceable by the means provided for in Tribunal Rules.

(2) Subsection (1) applies to a decision—

(a) on the merits of such a case,

(b) as to—

(i) payment of a sum of money, or

(ii) expenses by virtue of section 64, or

(c) otherwise affecting the rights, obligations or interests of a party in such a case.

(3) Subsection (1) is subject to section 58(3) as respects a determination to which that section relates.

(4) Rules making provision for the purpose of subsection (1) may (in particular) do so in relation to a relevant order by reference to the means of enforcing an order of the sheriff or the Court of Session.

(5) In subsection (4), “relevant order” means order of either of the Tribunals giving effect to a decision to which subsection (1) applies.

Commencement Information

I66 S. 63 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

64 Award of expenses S

(1) In connection with proceedings in a case before the First-tier Tribunal or the Upper Tribunal, the Tribunal may award expenses so far as allowed in accordance with Tribunal Rules.

(2) Where such expenses are awarded, the awarding Tribunal is to specify by and to whom they are to be paid (and to what extent).

(3) Tribunal Rules may make provision—

(a) for scales or rates of awardable expenses,

(b) for—

(i) such expenses to be set-off against any relevant sums,

(ii) interest at the specified rate to be chargeable on such expenses where unpaid,

(c) stating the general or particular factors to be taken into account when exercising discretion as to such expenses,

(d) about such expenses in other respects.

(4) Tribunal Rules may make provision—

(a) for disallowing any wasted expenses,

(b) for requiring a person who has given rise to such expenses to meet them.

(5) Rules making provision as described in subsection (3) or (4) may also prescribe meanings for “relevant sums”, “specified rate” and “wasted expenses” as used in this section.

Commencement Information

I67 S. 64 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Supplementary provisions S

65 Additional powers S

(1) The Scottish Ministers may by regulations confer on the First-tier Tribunal and the Upper Tribunal such additional powers as are necessary or expedient for the proper exercise of their functions.

(2) Regulations under subsection (1) may include provision—

(a) relying on the effect of an act of sederunt made by the Court of Session,

(b) causing Part 1 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 to apply to the making of a relevant act of sederunt as it does to the making of Tribunal Rules.

(3) Before making regulations under subsection (1), the Scottish Ministers must obtain the Lord President's approval.

Commencement Information

I68 S. 65 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

66 Application of enactments S

(1) The Scottish Ministers may by regulations modify the application of any enactment so far as they consider to be necessary or expedient for the purposes of or in connection with the matters to which this subsection applies.

(2) Regulations under subsection (1) may include provision—

(a) relying on the effect of an act of sederunt made by the Court of Session,

(b) causing Part 1 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 to apply to the making of a relevant act of sederunt as it does to the making of Tribunal Rules.

(3) Subsection (1) applies to—

(a) the making of Tribunal Rules,

(b) the effect of—

(i) this Part, or

(ii) Tribunal Rules.

(4) Before making regulations under subsection (1), the Scottish Ministers must obtain the Lord President's approval.

Commencement Information

I69 S. 66 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

67 Offences in relation to proceedings S

(1) The Scottish Ministers may by regulations make provision, in relation to proceedings before the First-tier Tribunal or the Upper Tribunal—

(a) for offences and penalties—

(i) for making a false statement in an application in a case,

(ii) for failure by a person to attend, or give evidence in, such proceedings when required to do so in accordance with Tribunal Rules,

(iii) for alteration, concealment or destruction by a person of, or failure by a person to produce, something that is required to be produced in such proceedings in accordance with Tribunal Rules,

(b) about the circumstances in which a person need not give evidence or produce something (for example, where a person could not be compelled to give evidence or produce something in proceedings in a case before the sheriff or in the Court of Session).

(2) The maximum penalties that may be provided for in regulations under subsection (1) are—

(a) for an offence triable summarily only, imprisonment for a term not exceeding 12 months or a fine not exceeding level 5 on the standard scale (or both),

(b) for an offence triable either summarily or on indictment—

(i) on summary conviction, imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both),

(ii) on conviction on indictment, imprisonment for a term not exceeding 2 years or a fine (or both).

(3) Before making regulations under subsection (1), the Scottish Ministers must obtain the Lord President's approval.

Commencement Information

I70 S. 67 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

CHAPTER 2 S Practice and procedure

Tribunal Rules S

68 Tribunal Rules S

(1) There are to be rules—

(a) regulating the practice and procedure to be followed in proceedings at—

(i) the First-tier Tribunal,

(ii) the Upper Tribunal, and

(b) containing provision of other sorts appropriate with respect to the Scottish Tribunals (including in relation to the exercise by them of their functions).

(2) Rules of the kind mentioned in subsection (1) are to be known as Scottish Tribunal Rules (and in this Act they are referred to as Tribunal Rules).

(3) Tribunal Rules are to be made by the Court of Session by act of sederunt.

(4) Part 1 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 includes further provision about the making of Tribunal Rules.

Commencement Information

I71 S. 68 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

69 Exercise of functions S

(1) Tribunal Rules may confer functions on the persons mentioned in subsection (5) or the other members of the Scottish Tribunals.

(2) Tribunal Rules may, in relation to any functions exercisable by the persons mentioned in subsection (5) or the other members of the Scottish Tribunals—

(a) state—

(i) how a function is to be exercised,

(ii) who is to exercise a function,

(b) cause something to require further authorisation,

(c) permit something to be done on a person's behalf,

(d) allow a specified person to make a decision about any of those matters.

(3) Tribunal Rules may make provision relying on the effect of directions issued, or to be issued, under section 74.

(4) Neither Tribunal Rules nor directions under section 74 may make provision altering the operation of section 37(1) or 39(1).

(5) For the purposes of subsections (1) and (2), the persons are—

(a) the Lord President,

(b) the President of Tribunals,

(c) in the First-tier Tribunal—

(i) a Chamber President,

(ii) a Deputy Chamber President,

(d) a Vice-President of the Upper Tribunal.

Commencement Information

I72 S. 69 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

70 Extent of rule-making S

(1) Tribunal Rules may make—

(a) provision applying—

(i) equally to both of the First-tier Tribunal and the Upper Tribunal, or

(ii) specifically to one of them,

(b) particular provision for each of them about the same matter.

(2) Tribunal Rules may make particular provision for different—

(a) chambers or divisions,

(b) types of proceedings.

(3) Tribunal Rules may make different provision for different purposes in any other respects.

(4) The generality of section 68(1) is not limited by—

(a) sections 71 to 73, or

(b) any other provisions of this Act about the content of Tribunal Rules.

(5) As well as Chapter 1, see (for example) sections 28(5), 42(1), 43(3)(b) and 59(2).

Commencement Information

I73 S. 70 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Particular matters S

71 Proceedings and steps S

(1) Tribunal Rules may make provision about proceedings in a case before the Scottish Tribunals.

(2) Rules making provision as described in subsection (1) may (in particular)—

(a) provide for the form and manner in which a case is to be brought,

(b) allow for the withdrawal of a case (with or without restrictions on subsequent proceedings as respects the same matter),

(c) set time limits for—

(i) making applications,

(ii) taking particular steps,

(d) enable two or more applications to be conjoined in certain circumstances,

(e) specify circumstances in which the Tribunals may take particular steps of their own initiative.

Commencement Information

I74 S. 71 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

72 Hearings in cases S

(1) Tribunal Rules may make provision about hearings in a case before the Scottish Tribunals.

(2) Rules making provision as described in subsection (1) may (in particular)—

(a) provide for certain matters to be dealt with—

(i) without a hearing,

(ii) at a private hearing,

(iii) at a public hearing,

(b) require notice to be given of a hearing (and for the timing of such notice),

(c) specify persons who may—

(i) appear on behalf of a party in a case,

(ii) attend a hearing in order to provide support to a party or witness in a case,

(d) specify circumstances in which particular persons may appear or be represented at a hearing,

(e) specify circumstances in which a hearing may go ahead—

(i) at the request of a party in a case despite no notice of it having been given to another party in the case,

(ii) in the absence of a particular member chosen to exercise the function of deciding any matter in a case,

(f) enable two or more sets of proceedings to be taken concurrently at a hearing in certain circumstances,

(g) allow for an adjournment of a hearing for the purpose of giving the parties in a case an opportunity to use a process of negotiation, mediation, arbitration or adjudication for resolving a dispute to which the case relates,

(h) allow for the imposition of reporting restrictions for particular reasons arising in a case.

Commencement Information

I75 S. 72 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

73 Evidence and decisions S

(1) Tribunal Rules may, in connection with proceedings before the Scottish Tribunals—

(a) make provision about the giving of evidence and the administering of oaths,

(b) modify the application of any other rules relating to either of those matters so far as they would otherwise apply to such proceedings.

(2) Tribunal Rules may, in connection with proceedings before the Scottish Tribunals, provide for the payment of expenses and allowances to a person who—

(a) gives evidence,

(b) produces a document, or

(c) attends such proceedings (or is required to do so).

(3) Tribunal Rules may, in connection with proceedings before the Scottish Tribunals, make provision by way of presumption (for example, as to the serving of something on somebody).

(4) Tribunal Rules may make provision about decisions of the Scottish Tribunals, including as to—

(a) the manner in which such decisions are to be made,

(b) the incorporation in such decisions of findings in fact,

(c) the recording, issuing and publication of such decisions.

Commencement Information

I76 S. 73 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Issuing directions S

74 Practice directions S

(1) The President of Tribunals may issue directions as to the practice and procedure to be followed in proceedings at—

(a) the First-tier Tribunal,

(b) the Upper Tribunal.

(2) A Chamber President in the First-tier Tribunal may issue directions as to the practice and procedure to be followed in proceedings in the chamber over which the Chamber President presides.

(3) A Vice-President of the Upper Tribunal may issue directions as to the practice and procedure to be followed in proceedings in the division over which the Vice-President presides.

(4) Directions under subsection (2) or (3) may not be issued without the approval of the President of Tribunals.

Commencement Information

I77 S. 74 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

75 Publication and effect S

(1) The President of Tribunals must arrange for directions under section 74(1), (2) or (3) to be published in such manner as the President of Tribunals considers appropriate.

(2) Directions under section 74(1), (2) or (3) may—

(a) vary or revoke earlier such directions,

(b) make different provision for different purposes (in the same respects as Tribunal Rules).

(3) If (and to the extent that) any conflict arises between—

(a) directions issued under section 74(1), and

(b) directions issued under section 74(2) or (3),

those issued under section 74(1) are to prevail.

Commencement Information

I78 S. 75 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

CHAPTER 3 S Fees and administration

76 Tribunal fees S

(1) The Scottish Ministers may by regulations make provision for the reasonable fees that are to be payable in respect of any matter that may be dealt with by the Scottish Tribunals.

(2) Regulations under subsection (1) may provide for (in particular)—

(a) scales or rates of fees,

(b) in relation to fees—

(i) reduction in amount,

(ii) exemption or waiver.

(3) Before making regulations under subsection (1), the Scottish Ministers must consult—

(a) the Lord President,

(b) to such extent as they consider appropriate, persons having an interest in the operation and business of the Scottish Tribunals.

Commencement Information

I79 S. 76 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Prospective

F17 77 Administrative support S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F17 S. 77 repealed (1.4.2015) by Courts Reform (Scotland) Act 2014 (asp 18), Sch. 4 para. 8; S.S.I. 2015/77, art. 2(2)(3), Sch.

78 Annual reporting S

(1) The President of Tribunals is to prepare an annual report about the operation and business of the Scottish Tribunals.

(2) An annual report is to be given to the Lord President at the end of each financial year.

(3) An annual report—

(a) must explain how the Scottish Tribunals have exercised their functions during the financial year,

(b) may contain such other information as—

(i) the President of Tribunals considers appropriate, or

(ii) the Lord President requires to be covered.

(4) The Lord President must—

(a) publish each annual report in a manner suitable for bringing it to the attention of persons having an interest in the operation and business of the Scottish Tribunals,

(b) before so publishing it, send a copy of the report to the Scottish Ministers.

Commencement Information

I80 S. 78 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

PART 8 S Final provisions

General and ancillary S

79 Regulation-making S

(1) Regulations under the preceding Parts of this Act may—

(a) make different provision for different purposes,

(b) include supplemental, incidental, consequential, transitional, transitory or saving provision.

(2) Regulations under the following provisions of those Parts are subject to the affirmative procedure—

(a) section 20(2) or 23(2),

(b) section 27(2) or 28(2),

(c) section 38(1), 40(1) or 41(1),

(d) section 65(1), 66(1) or 67(1).

(3) Regulations under any other provisions of those Parts are subject to the negative procedure.

Commencement Information

I81 S. 79 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

80 Ancillary regulations S

(1) The Scottish Ministers may by regulations make such supplemental, incidental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of or in connection with this Act.

(2) Regulations under this section—

(a) are subject to the affirmative procedure if they add to, replace or omit any part of the text of an Act (including this Act),

(b) otherwise, are subject to the negative procedure.

Commencement Information

I82 S. 80 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

81 Transitional and consequential S

For the purposes of or in connection with this Act, schedule 9 contains—

(a) transitional and other provision,

(b) modification of enactments.

Commencement Information

I83 S. 81 in force at 1.4.2015 by S.S.I. 2015/116, art. 2

Interpretation, commencement and short title S

82 Interpretation S

(1) In this Act, “Lord President” means Lord President of the Court of Session.

(2) Schedule 10 is an index of expressions used in this Act together with a note of some key provisions.

83 Commencement S

(1) Section 82, this section and section 84 come into force on the day after Royal Assent.

(2) The other provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.

(3) An order under subsection (2) may include transitional, transitory or saving provision.

84 Short title S

The short title of this Act is the Tribunals (Scotland) Act 2014.